Navigating the Sea Changes in Patent Law to Successfully Build Value

Major changes in U.S. patent law are having an impact on the value of patents. The Leahy-Smith America Invents Act (AIA) introduced numerous changes to U.S. patent law including the switch to a first to file patent system from a first to invent patent system. New proceedings at the U.S. Patent and Trademark Office to challenge the grant of issued patents have produced quick results and emerging trends. Recent U.S. Supreme Court decisions have changed the threshold determination of patentability under 35 U.S.C. § 101, altering the patentability standards for biotech/pharma inventions, as well as computer/business method inventions. In Europe, the framework for an emerging unitary patent system, expected to be implemented by mid-2016, will add complexity to strategic patent planning for that region. This article will review these changes, discuss trends and provide strategies to build a patent portfolio with valid and enforceable patent claims as a foundation to withstand patentability and validity challenges.